Eliseo Nmn Hernandez, petitioner, Appellant,

This opinion will be unpublished and
may not be cited except as provided by
Minn. Stat. § 480A.08, subd. 3 (2018).

STATE OF MINNESOTA
IN COURT OF APPEALS
A20-0023

Eliseo Nmn Hernandez, petitioner,
Appellant,

vs.

State of Minnesota,
Respondent.

Filed June 8, 2020
Affirmed
Larkin, Judge

Dakota County District Court
File No. 19HA-CR-17-2678

Cathryn Middlebrook, Chief Appellate Public Defender, Sara L. Martin, Assistant Public
Defender, St. Paul, Minnesota (for appellant)

Keith Ellison, Attorney General, St. Paul, Minnesota; and

James C. Backstrom, Dakota County Attorney, Heather Pipenhagen, Assistant County
Attorney, Hastings, Minnesota (for respondent)

Considered and decided by Connolly, Presiding Judge; Larkin, Judge; and
Rodenberg, Judge.

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U N P U B L I S H E D O P I N I O N
LARKIN, Judge
After a court trial, the district court found appellant guilty of two counts of assault
and entered judgments of conviction . Appellant petitioned for postconviction relief,
arguing that the district court had failed to consider his self -defense claim. T he
postconviction court summarily denied his petition. We affirm.
FACTS
In 2017, appellant Eliseo Hernandez went to a bar with friends and became
intoxicated.1 The bar’s night manager, D.H., told Hernandez that he was “cut-off.” D.H.
attempted to escort Hernandez out of the bar and was walking next to him when Hernandez
turned and punched D.H. in the eye. The punch caused swelling and bruising. The bar’s
general manager, J.G., saw the unprovoked punch and rushed to help . J.G. wrestled
Hernandez to the ground and held him until he calmed down and agree d to leave. When
J.G. released Hernandez, Hernandez punched the bar’s security guard, A.C., chipping hi s
tooth. J.G. restrained Hernandez until police arrived. The state charged Hernandez with
third-degree and fifth-degree assault.
The district court held a court trial, and Hernandez represented himself. Although
the prosecutor requested notice of any self-defense claim and Hernandez failed to provide
such notice, Hernandez mentioned self -defense in his opening statement and provided
testimony suggesting that he acted in self-defense. See Minn. R. Crim. P. 9.02, subd. 1(5)

1 Our description of the historical facts is based on the district court’s posttrial findings.

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(requiring a defendant to inform the prosecutor in writing of a self -defense claim up on
request of the prosecutor). Hernandez testified that someone grabbed him from behind and
dragged him to the bar’s exit. He was “pretty sure” it was D.H. According to Hernandez’s
testimony, J.G. then joined the fray and choked Hernandez until he was unconscious.
When Hernandez woke, he was surrounded by five people who were “encroaching,” so he
“threw a punch.” On cross-examination, Hernandez admitted that he was “pretty drunk ”
and did not know whom he punched or why he punched that person. The district court
found Hernandez guilty of both counts of assault, without expressly discussing self-defense
in its verdict order.
Hernandez petitioned for postconviction relief, arguing that the district court had
erred by failing to consider his self-defense claim. The postconviction court ruled that
Hernandez was not entitled to consideration of his self -defense cl aim because: (1) the
district court was “ not required to provide sua sponte a self-defense instruction,”
(2) Hernandez did not provide the district court or state with written notice of the defense,
and (3) Hernandez was the aggressor and therefore “disqualified from receiving a self -
defense instruction.” The postconviction court noted that “[e] yewitness testimony
established the aggressive—even unprovoked—assaultive behavior of [Hernandez],” as set
forth in the district court’s findings of fact. This appeal followed.
D E C I S I O N
I.
“[Appellate courts] review a postconviction court’s summary denial of a petition for
postconviction relief for an abuse of discretion.” Andersen v. State, 913 N.W.2d 417, 422

4
(Minn. 2018). “A postconviction court abuses its discretion when its decision is based on
an erroneous view of the law or is against logic and the facts in the record.” Id. (quotation
omitted).
In Minnesota, a person may use reasonable force to defend himself against an
assault. Minn. Stat. § 609.06, subd. 1(3) ( 2016). The supreme court has read section
609.06, subdivision 1(3), to include four elements:
(1) the absence of aggression or provocation on the part of the
defendant; (2) the defendant’s actual and honest belief that he
or sh e was in imminent danger of bodily harm ; (3) the
existence of reasonable grounds for that belief; and (4) the
absence of a reasonable possibility of retreat to avoid the
danger.

State v. Devens, 852 N.W.2d 255, 258 (Minn. 2014 ) (quotation omitted). If a defendant
asserts that his actions were in self-defense and presents evidence supporting that assertion,
the state must disprove , beyond a reasonable doubt, at least one of the aforementioned
elements. Id.
Hernandez contends that the district court comm itted reversible error by failing to
consider his self -defense claim. We disagree. The district court’s findings show that it
accepted testimony that Hernandez was the aggressor and reject ed Hernandez’s self -
defense testimony. See State v. Al -Naseer, 788 N.W.2d 469, 473 (Minn. 2010) (stating
that the trier of fact is best positioned to determine credibility and weigh the evidence). For
example, the district court found that D.H. “attempted to escort [ Hernandez] out of the
premises and was walk ing side by side with [him ]” when Hernandez “turned and struck
[D.H.] with his right fist.” D.H. testified consistent ly with this finding , as did J.G., who

5
did not see D.H. do anything to provoke Hernandez’s attack. The district court also found
that after Hernandez was released by J.G., promised to leave, and walked toward the door,
Hernandez turned and punched the security guard, A.C., in the face . A.C.’s testimony
supports this finding. And D.H. described Hernandez’s act of striking A.C. as a “sucker
punch.”
In addition, at trial, the district court acknowledged that Hernandez had “raised an
issue of self -defense.” Although the district court questioned whether Hernandez had
properly preserved the issue, t he court discussed trial testimony refuting a self -defense
claim, specifically, testimony showing that Hernandez was the aggressor. The court stated
that “in one case [Hernandez’s act] was described as a sucker punch, and in the other case
it was described as a cold-cock.” The district co urt’s verdict and findi ngs reflect its
acceptance of those descriptions, as well as an implicit finding rejecting Hernandez’s self-
defense claim. See State v. Oanes, 543 N.W.2d 658, 663 (Minn. App. 1996) (holding that
district court’s failure, following a court trial, to specifically address entrapment defense
was not fatal, but rather required an implicit finding consistent with the guilty verdict).
In sum, the district court’s findings and statements at trial indicate that it considered
and rejected Hernandez’s self-defense claim, reasoning that Hernandez was the aggressor.
Thus, the postconviction court did not abuse its discretion by denying Hernandez’s
postconviction petition based upon its determination that Hernandez was the aggressor and
therefore not entitled to claim self-defense. If a defendant is not entitled to a defense,
failing to submit that defense for the fact -finder’s consideration is not erroneous. State v.
Pendleton, 567 N.W.2d 265, 270 (Minn. 1997).

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Hernandez relies on jury-instruction caselaw and argues that the district court was
obligated to view the evidence of self -defense in a light most favorable to him . “In
evaluating whether a rational basis exists in the evidence for a jury instruction, the evidence
is viewed in the light most favorable to the party requesting the instruction.” State v.
Edwards, 717 N.W.2d 405, 410 (Minn. 2006) . Reliance on caselaw regarding jury
instructions is illogical because the charges here were tried to the court, and not to a jury.
Thus, the district court was required to decide both whether Hernandez was entitled to raise
a self -defense claim and if so, whether the state ha d disproved the claim beyond a
reasonable doubt. The district court’s findings and the postconviction court’s explanation
establish their consideration and rejection of Hernandez’s self-defense claim on the merits.
Because we conclude that the postconviction court did not err by rejecting
Hernandez’s self-defense claim on the merits, we do not analyze the postconviction court’s
alternative determination that Hernandez failed to provide adequate notice of that defense.
II.
In a pro se supplemental brief, Hernandez raises additional arguments. He asserts
that the judge failed to “respond within a time limit,” apparently referencing the timing of
the postconviction court’s order. Hernandez suggests that the order must be “withdrawn.”
The record indicates that the postconviction court did not timely receive the postconviction
petition due to an administrative error, but once the petition was received , the court
immediately addressed it. Hernandez cites certain articles and rules to support his
argument that the postconviction court’s order must be withdrawn, but he does not identify
the legal origins of those purported authorities, and he fails to identify the time limit to

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which he refers. We will not consider pro se claims that are unsupported by argument or
citation to legal authority, unless prejudicial error is obvious. State v. Bartylla, 755 N.W.2d
8, 22-23 (Minn. 2008). We discern no obvious prejudicial error.
Hernandez also asserts that “the charges were not proven to be true beyond a
reasonable doubt,” and h e attacks the credibility of certain trial witnesses. We construe
this as a challenge to the sufficiency of the evidence . When direct evidence supports the
convictions, as is the case here, our review is limited “to a painstaking analysis of the
record” to determine whether that evidence, viewed in a light most favorable to the
conviction, was sufficient to permit the fact-finder to reach its verdict. State v. Horst, 880
N.W.2d 24, 39-40 (Minn. 2016) (quotation o mitted). We assume that the fact -finder
believed the state’s witnesses and did not credit any testimony to the contrary. State v.
Moore, 43 8 N.W.2d 101, 108 (Minn. 1989). Thus, Hernandez’s challenges to the
credibility of the state’s witnesses are unavailing.
To obtain a conviction for third-degree assault, the state had to prove that Hernandez
assaulted A.C. and inflicted substantial bodily harm. Minn. Stat. § 609.223, subd. 1 (2016).
An “assault” is defined to include the intentional infliction of bodily harm upon another.
Minn. Stat. § 6 09.02, subd. 10(2) (2016). Trial testimony , including Hernandez’s own
testimony, established that Hernandez assaulted A.C. by intentionally punching him in the
face. As previously discussed, Hernandez’s actions were not justified as self-defense
because he was the aggressor.
“Substantial bodily harm” is defined as “bodily injury which involves a temporary
but substantial disfigurement, or which causes a temporary but substantial loss or

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impairment of the function of any bodily member or or gan, or which ca uses a fracture of
any bodily member.” Minn. Stat. § 609.02, subd. 7a (2016). Whether an injury constitutes
a particular degree of bodily harm is a question for the fact-finder. See State v. Moore, 699
N.W.2d 733, 737 (Minn. 2005) (holding that the question of whether an injury constitutes
great bodily harm is a question for the jury) . Testimony at trial established that A.C. was
temporarily stunned by the punch and that he suffered a visibly chipped tooth and bloody
nose. Th at testimony supported a finding of substantial bodily harm. See State v.
Bridgeforth, 357 N.W.2d 393 , 394 (Minn. App. 1984) (indicating that a tooth is a bodily
member), review denied (Minn. Feb. 6, 1985); see also State v. Harlin, 771 N.W.2d 46, 51
(Minn. App. 2009) (indicating that a chipped tooth may qualify as substantial bodily harm),
review denied (Minn. Nov. 17, 2009). In sum, t he evidence was sufficient to prove the
offense of third-degree assault beyond a reasonable doubt.
To obtain a conviction for fifth-degree assault, the state had to prove that Hernandez
intentionally inflicted bodily harm upon D.H. Minn. Stat. § 609.224, subd. 1(2) (2016).
Trial testimony established that Hernandez intentionally punched D.H. in the face without
provocation and that the punch caused swelling and bruising. The evidence was sufficient
to prove the offense of fifth-degree assault beyond a reasonable doubt.
Lastly, Hernandez broadly asserts that there was fraud, perjury, and other injustices
in the criminal proceedings against him. Hernandez does not provide legal argument or

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authority in support of that assertion. We therefore decline to address it further. See
Bartylla, 755 N.W.2d at 23 (d eclining to address unsupported pro se arguments because
prejudicial error was not obvious).
Affirmed.